Obfuscation Form 700

The Supreme Court recently ruled in favor of Hobby Lobby but among the many things that are not widely understood is that the decision did not actually result in the firm’s employees losing insurance coverage for IUDs. The actual result is that the employees will still have coverage for IUDs, but the insurance processor rather than Hobby Lobby will have to pay for it (at least in theory). That is, Hobby Lobby was seeking to take advantage of the Obama administration’s own proposal for faith-based nonprofits. As Julian Sanchez at Cato observed, the entire case turns on an entirely symbolic issue of whether the Greens explicitly have to pay for IUDs or are allowed to wink at an obfuscation in which their insurance company bears the cost (at least theoretically).

I found this interesting not only because it’s a much discussed case but also because it’s a close fit with my article published a few months ago in Sociological Theory. (Here’s an ungated version that lacks the benefit of some really good copy-editing). In the article I talk about situations where a moral objection gets in the way of a transaction but the transaction nonetheless occurs through the expedient of obfuscating that a transaction is occurring at all. I describe three mechanisms for accomplishing this and the nonprofit exemption which now also applies to Hobby Lobby is characterized by two of them, brokerage and bundling. That is, the employer does not buy theIUD for the employee but rather pays a broker (the insurance processor) who in turn provides the IUD. Moreover, the IUD is bundled together with other health coverage. The third model which is not at issue in Hobby Lobby but which I describe in the paper is gift exchange, where explicit quid pro quo is replaced with tacit reciprocity.

Of course for an exchange to be morally objectionable or for it to be koshered is entirely subjective. Most obviously in Hobby Lobby there is a range of opinions about the moral acceptability of birth control and abortifacients and where to draw the line between the two. More interesting to me is that opinions vary on what counts as “buying” the contested commodity and whether to seize on obfuscation and denounce it. On this issue the irony is that while the Obama administration itself came up with this obfuscation for nonprofits it opposed extending it to for-profit firms. At a general level, obfuscation doesn’t objectively exist but rather it creates a permission structure that actors can choose to consent to.

This becomes clear when we contrast Hobby Lobby to Little Sisters of the Poor. Whereas the owners of Hobby Lobby sued to avail themselves of the obfuscatory accomodation, the Little Sisters of the Poor who (as a nonprofit) already have this obfuscation available to them but are suing to denounce it as mere obfuscation and completely remove themselves from even obfuscated provision of all birth control. Specifically, the Little Sisters are refusing to fill out EBSA Form 700 stating their objection to providing contraceptive coverage since to do so would trigger provision through their insurer and they see this as involving themselves in something morally objectionable. That is, while Hobby Lobby would be delighted to wink and nod (and the Obama administration was reluctant to allow them to do so) the Little Sisters are adamantly opposed to a fig leaf (and the Obama administration would be delighted were they to play along with the face-saving obfuscation).